Seattle University Collaborative Projects - International Academy of ...

The Defences of Pathological and Non-Pathological Criminal Capacity withRegard to the HIV/AIDS Panic-DefenceMagdaleen Swanepoel, University of South Africa (swanem@unisa.ac.za)Louise Olivier, University of Pretoria (louise@psychupsafaris.com)Prof. Magdaleen Swanepoel will examine the historical and doctrinal background of the socalledHIV/AIDS panic defense in context of the defence of pathological and non-pathologicalcriminal capacity. There are a variety of strategies that suggest that a criminal defendant shouldbe excused or justified if his violent actions were in response to an HIV/AIDS panic attackadvance. Prior to 2000, 21 states enacted statutes criminalising behaviour that risks thetransmission of HIV or AIDS either sexually or through tissues such as blood or semen. Thequestion of whether the so-called HIV/AIDS panic defence is a manifestation of the temporaryinsanity plea will further be raised by Prof Swanepoel. The status of the victim having beenpossibly infected by AIDS during rape versus the perpetrator will be discussed by Dr. LouiseOlivier.The Defences of Pathological and Non-Pathological Criminal Capacity withRegard to the Cultural DefenceChazanne Grobler, University of Pretoria (chazanne.grobler@up.ac.za)Louise Olivier, University of Pretoria (louise@psychupsafaris.com)Culture exerts a strong influence on individuals’ thoughts, processes and behaviours,predisposing them to act in ways consistent with their upbringing – the so called enculturation ofa person. These beliefs have led to culturally motivated crimes which clash with state law, suchas witch killings in the case of belief in African witchcraft. The question that is raised by Ms.Chazanne Grobler is whether cultural factors illustrate a person with a character that deservespunishment, or whether they point to someone who did not freely choose to commit a crime andwhose motive explains their conduct and excuses (or justifies) it. Ms. Grobler advocates theformalisation of the cultural defence and will consider the nature, scope and application of thisdefence in light of the belief in African witchcraft. She postulates that an accused or defendant'scultural background could negate the essential elements of criminal liability. If convicted, amitigation of sentence can be argued. Although the cultural defence is a multiple defence, shewill explore the cultural defence in context of the element of capacity, specifically with referenceto the existing defences of non-pathological incapacity (in the case of provocation) and thedefence of pathological incapacity. Some cultural beliefs in terms of the Zulu and Sotho tribes(the biggest of the Nguni and Sotho groups) will be highlighted by Dr. Louise Olivier.34